ASKED & ANSWERED: Bernard Jocuns on State Bar's new Marijuana Law Section

By Sue

Oakland County Legal News

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By Steve ThorpeLegal News

Michigan’s medical marijuana laws are complex and evolving frequently based on court rulings. Attorneys specializing in marijuana law will now have their own section within the State Bar of Michigan to help navigate the maze. More than 50 attorneys needed to sign on to establish the group. Attorney Bernard Jocuns of Lapeer was instrumental in getting the group together. His practice includes criminal defense, personal injury, worker’s compensation, Social Security Disability and Family Law.

Thorpe: Tell us about the formation of the section. Any tip of the hat to others who helped?

Jocuns: Formation of a new Section of the State Bar of Michigan requires the following:

Proposed By-Laws of the section, a proposed budget for the first two (2) years of operating as a section, a list of at least fifty (50) attorneys interested in joining such a section and most importantly a “Statement of Necessity” addressing the specific need for a new section. The latter required a lot of thought and creativity to explain the need for such a new section as to how Marijuana Law is a distinct area of concentration and not merely a derivative of other areas of the law.

There are too many people that need to be acknowledged in making this section a reality. This list is in no particular order and anyone I have not specifically acknowledged, you are not forgotten. My friends and peers at Trial Lawyers College for constantly inspiring me to think outside of the box; Matthew Abel and all at Michigan NORML; attorneys Mary Chartier and Daniel Grow for their encouragement and interest in exchanging knowledge and ideas to all Michigan attorneys; all Michigan attorneys that added their name to exemplify the need for a Marijuana Law Section of the State Bar of Michigan along with Rick Thompson and The Compassion Chronicles for spreading the word quickly to thousands of people throughout the State of Michigan to get this conversation rolling. It is also imperative to thank my wife (officer manager, client liaison and Lapeer City Commissioner) Elaine M. Gates for fielding the exponential phone calls and emails regarding this project, encouragement to do something new, not to mention learning more about marijuana than she ever wanted to know in the past several years and sharing those nuggets of information whenever pertinent.

Thorpe: How will the section assist attorneys doing this kind of work?

Jocuns: The Marijuana Law Section formally opens up the lines of communication for all Michigan attorneys to share their ideas, knowledge, concentration(s) and commitment to network with other interested members of the State Bar of Michigan. The Marijuana Law Section intends on addressing all current issues regarding Marijuana Law in an objective and non-biased manner. The section also intends on preparing for the future of Marijuana Law in the State of Michigan and the United States as a whole. Currently several states have implemented medical marijuana laws with others successfully integrating recreation use of marijuana into legislation. Through deductive logic regulated legalization is inevitable in Michigan and attorneys need to prepare for a smooth and successful transition when these changes occur.

Thorpe: How has this area of the law evolved in the last decade? How did it get so complicated so fast?

Jocuns: During my 12 years of practice, marijuana started as purely “illegal” and exclusively associated with criminal law. Since the Michigan Medical Marijuana Act of 2008 things have transitioned into becoming socially acceptable as opposed to behavior that would traditionally be associated with crime or characters in B-movies. Under the Controlled Substances Act, a Schedule I drug must meet three criteria: It has a high likelihood of abuse; it has no currently accepted medical use in treatment in the United States; and it can be unsafe if used even under medical supervision. Clearly, in 2015 marijuana does not meet any of these criteria.

Unfortunately there are judges out there that metaphorically tend to practice medicine from the bench, coupled with many prosecutors that simply are not on board with the Act as marijuana cases were traditionally prosecuted vigorously throughout the State of Michigan. With the aforementioned in mind there have been a cavalcade of cases that hit the Michigan State Supreme Court, nine to be exact. The truth of the matter is that bad facts often create bad law. Organizing a specific section of attorneys in the State of Michigan will have a positive impact and influence on marijuana law as it appears to be its own unique area branching off into a vast area of different legal concentrations.

Thorpe: What are some of the recent rulings that affect the laws in Michigan?

Jocuns: Hartwick and Tuttle are the two cases that affect every criminal defense attorney in Michigan. The opinions in Hartwick and Tuttle show a potential for positive changes in the law, but nothing is set in stone. It appears that if a patient or caregiver has enough documentation that it is no longer necessary to bring in a physician for a section 8 hearing, which is often burdensome. The holding also appears to give an inherent right to a Section 4 hearing regarding immunity from prosecution. Unfortunately, these matters will be tested and there will be several more cases to be left in the hands of the MSC for further interpretation. There are also other cases of importance that need to be mentioned. The opinion in Terbeek v. Wyoming quells a local governmental entity from “zoning out” caregivers or patients that cultivate and harvest their own medicine. The Koon case provides a valid defense to those individuals charged with driving under the influence of medical marijuana. The holding in McQueen does not extend a “patient to patient” privilege for medical marijuana patients and the opinion in Carruthers does not extend immunity to more than the dried flower/plant. Again, all of these issues will be addressed by the courts in the future in one way or another.

Thorpe: Drug law is one of those areas where federal, state and even municipal law seem to collide at an intersection. How does that add to the complexity?

Jocuns: As previously noted, the criteria of a Schedule I Narcotic no longer pertains to marijuana and even with those myths dispelled we are still years away from there being a legislative fix by the federal government. Because of those complexities there are drug forfeiture laws that are treated as civil in nature and lack due process. Currently someone can have their property seized by the government and not be charged for several months or never be charged at all. Also, there is a myth that “rescheduling” marijuana is the solution to the “Federal Dilemma,” but it actually adds to more confusion to medical marijuana patients. If marijuana is rescheduled then physicians would be entitled to write prescriptions for its use. If physicians write a prescription for use then you must get your prescription from a pharmacy. When pharmacies get involved, the shadow of “Big Pharmaceutical” is knocking at the door diminishing the quality of medicine and raising the prices. To make things simple, this would result in paying higher prices for lower quality of medicine and restricting access to the lower economic strata. These are just some of the conflicts that attorneys need to work together and be proactive to maintain equality in the law.

Thorpe: Michigan laws could soon change dramatically with multiple groups seeking to legalize marijuana in 2016. Can you look into your crystal ball and suggest what sorts of changes might be on the horizon?

Jocuns: The Michigan Comprehensive Cannabis Law Reform Committee (a/k/a MiLegalize) has the most thorough plan out there for the State of Michigan. The MiLegalize plan addresses revenue, age regulation, hemp along with marijuana and driving to name a few. This plan would get closer to one of my personal goals in no longer associating marijuana with criminal activity per se and making most possession of marijuana crimes a thing of the past. However, there will be issues to deal with just like alcohol, tobacco or firearms. I also see the recreational cannabis user as no longer being looked at as a stereotype or non-productive member of society. With the rise of professionals speaking out about the benefits of marijuana the sky is the limit.